Hubert Algie is an environment and planning lawyer at Kellehers Australia. He was awarded the VPELA Young Professional of the Year Award in 2016 to advance his research into Significant Social Effect within the planning permit process and consider how it can be operationalised.

‘Significant Social Effect’ (SSE) is a mandatory consideration in every permit application, s60(1)(f) of the Planning and Environment Act 1987.

Understanding and considering the human dimension, in social and cultural terms, allows full and proper assessment of planning permit applications whilst providing the community-at-large an opportunity at large to embrace the goal of Significant Social Effect to improve the total quality of life, for both now and into the future. [1]

Victoria’s planning system faces real difficulties in measuring, responding to and adopting SSE. Since this provision became mandatory no SSE cases have succeeded. A handful of Council’s developed policies and guidelines in an attempt to embrace and manage SSE[2].

CASES

A review of nineteen recent SSE cases[3] reveals useful principles for establishing and measuring SSE. These principles are collated into a list below. It is not exhaustive but usefully summaries key case principles.

List of Principles for establishing and measuring Significant Social Effect.

Must be objective and evidenced. Requires a ‘proper evidentiary basis’.[4]

It is open to the Responsible Authority to determine no formal assessment is required. [5]

The Responsible Authority [and VCAT] determines whether something constitutes a SSE and what weight it should be given.[14]

SSE involves an evaluative judgment of fact and degree.

PE Act does not place responsibility for determining what constitutes a SSE with the Supreme Court.

SSE is not defined by stipulated criteria.

Social effect is ‘necessarily protean’ – ie frequently changing.

The mode of assessing a SSE is not prescribed by the P&E Act.

Determining if an effect is significant is a question of fact.

The effect must be sufficiently probable to be significant.

‘Significant’ is informed by the possible gravity of the effect, including consideration of the ‘postulated consequences’.

Assessment should have regard to: planning scheme definition of the use sought, the applicant’s disclosed intentions and the capacity to confine and control the proposed use by permit conditions.

Of those cases, only the Rutherford & Ors v Hume CC [2014] VCAT 786 case found an ‘arguable’[15] social effect. Kellehers Australia contested his first ‘test’ case of s60(1)(f) and VCAT acknowledged a social effect existed, but found that it was not significant enough to outweigh the proposal’s potential benefits. No cases refused or amended a permit based on SSE. Interestingly, a handful of cases before the mandatory prevision did establish SSE sufficiently to partially or wholly defeat a permit application[16]. However, these cases often conflated ‘social’ issues with, impacts such as ‘economic’.

POLICY AND GUIDELINES

In the course of his research, Hubert identified a possible template to improve SSE policy and practice. This is outlined in ‘How to Ideas’ section below.

PERMIT CONDITIONS

Permit conditions also need skilled attention. If a permit is issued with or without undertaking a SIA, but SSE condition is imposed it:

Ought not trade social benefits and burdens between different communities;

Ought not trade social benefits and burdens between different members within a community;

Should take into account that dealing with a community as a homogeneous entity may reinforce established patterns of exclusion and inequity;

Should take care trading off disparate social burdens and benefits. Benefits can be quite dissimilar to burdens and not tradeable.

Ought not trade social benefits and burdens (eg increased employment) against environmental benefits and burdens (eg loss of a threatened species).[17]

‘HOW TO IDEAS’:

Define ‘Social Effect’ along the lines of:

is experienced or felt, in a perceptual or corporeal sense at the level of an individual, social unit (family/household) or community/society.[18]

Defined ‘Significance’ along the lines of:

Has a demonstrable probability of consequences resulting, including duration, extent, sensitivity and severity[19]

Define ‘Social Impact Assessment’ along the lines of:

The independent, adaptive and precautionary assessment of a Significant Social Effect.

Adopt in full (IAIA) principles and guidelines as foundational source/reference documents. Defining the goal of SIA along the lines of:

“to bring about a more ecologically, socio-culturally and economically sustainable and equitable environment’ [which] ‘promotes community development and empowerment, builds capacity and develops social capital (social networks and trust).”

Identify the type(s) of applications that must respond to SSE. As well as existing uses and locations which may be particularly sensitive. Providing certainty for both objectors and developers.

Reflection

Councils are at the goal face of community sensibilities and are recognised as such through the planning and policy system. Regular review and active engagement with the community should help shape Council policy and guidelines, as a living document.

Pre-Emptive

Develop policies to assist planning officers before commencing the permit application assessment process. Pre-application use of SSE/SIA could avoid costly objector delays and could well be marketable for developers. Mediation process should be actively incorporated, prior to the statutory timeline starting.

Management

Prepare standard permit conditions for selected types of use or development projects, sensitive locations, and/or community members. These conditions would specify ongoing management and regular review of SSE expectations and status of mitigation. Information gather during this process should be made publicly available, re-entering a dialogue which would improve outcomes.

Knowledge Sharing

Councils should collaborate with other Councils to reduce SSE policy development burdens. Sharing of collected information about strengths, weakness, opportunities, threats of SSE policy should be shared to improve our systems understanding and response.

Large-scale uptake

Incentivise developers and Councils to embrace the pre-emptive role SIA can play to avoid negative effects and harness positive effects. The more regular SIA is the more cost effective, productive and certain it can be.

[15] Being the ‘potential for members of the congregation of St Mary’s Church to feel so affronted by the presence of the mosque immediately adjacent to their church that they will cease attending the church, and it may close’. [58].

[17] Chief Judge, Land and Environment Court of New South Wales. ‘The adequacy of the law in satisfying society’s expectations for major projects’ An article based on earlier papers presented at the International Bar Association Annual Conference, Tokyo, Japan, 22 October 2014 and the Environmental and Planning Law Association (NSW) Annual Conference, Orange, New South Wales, 15 November 2014.

[22] Chief Judge, Land and Environment Court of New South Wales. ‘The adequacy of the law in satisfying society’s expectations for major projects’ An article based on earlier papers presented at the International Bar Association Annual Conference, Tokyo, Japan, 22 October 2014 and the Environmental and Planning Law Association (NSW) Annual Conference, Orange, New South Wales, 15 November 2014.

[23] Frank Vanclay, International Principles For Social Impact Assessment, International Association for Impact Assessment, 2003.